(Per : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA) By this application under Article 226 of the Constitution of India, the writ-petitioners have challenged the seizures of four of their consignments and have further challenged the order of provisional release passed with regard to those seizures.
It appears from the order dated February 11, 2011 passed by the Assistant Commissioner, ICD, Dashrath, Vadodara that the provisional release of the goods has been allowed by the Commissioner on furnishing bond of an amount of Rs.24.00 Lac and bank guarantee for 25% of the bond amount. By the said order, the petitioners were further requested to submit proof of payment of Rs. 5.00 Lac which might be adjusted against payment of differential duty of Rs.4,47,339/- payable on differential value of Rs. 16,66,147/- as arrived at by the Directorate of Revenue Intelligence [DRI] which has already been communicated to the writ-petitioners. By the said order, the writ-petitioners were further directed to pay the duty of Rs.1,82,322/- on assessable value of Rs. 6,79,072/- over and above the differential duty of Rs. 4,47,339/-.
Similar orders have been passed in respect of other three consignments.
This application has been opposed by the respondents no. 2 and 5 as well as respondents no. 3, 4, 6 and 7 by filing separate affidavits.
After hearing the learned counsel for the parties and after going through the materials on record, we find that the petitioners have disputed the fixation of valuation of the consignments which is pending adjudication. It further appears that inspite of service of show cause notice, till today, no answer has been given by the writ-petitioners. Mr. Devan Parikh, learned Sr. Counsel appearing on behalf of the petitioners submits that in the absence of documents seized from his client, his client was not in a position to answer such show cause notice. Mr. Parikh has further drawn our attention to the fact that some of the documents have been released ten days back.
Mr.
Parikh further disputes the valuation fixed by the respondent authority.
In view of the fact that there are four consignments seized by the respondent authority, we are of the view that in such situation, the petitioners may be permitted to have release of three of the consignments and remaining one consignment will be kept as security. In addition to such security, the petitioners will give corporate bond of the entire valuation as demanded by the respondent and will give bank guarantee of 25% of the differential duty. On furnishing of such bond and bank guarantee as indicated above, the respondent authority will release three of the consignments detaining the remaining one. This order will abide by the ultimate result of adjudication by the respondent authority. We make it clear that we have, otherwise, not gone into the allegations and counter-allegations and in passing the above order, we have relied upon the decision of the Delhi High Court in the case of Navshakti Industries Pvt.Ltd. v. Commissioner of Custom, ICD, TKD, New Delhi, reported in 2011 [267] E.L.T. 483 [Del.] which has been affirmed by the Supreme Court vide order dated May 4, 2011. We are conscious that in that matter, the Supreme Court enhanced the security to 30% , but having regard to the fact that we have not permitted the release one of the four consignments of the petitioners, we, in the facts of the present case, restrict the amount of bank guarantee to 25%. The petitioners, however, must answer to the show cause within three weeks from today. In default of the same, the respondent authority will be free to adjudicate the matter exparte.
The application is, thus, disposed of. Direct service is permitted.
[BHASKAR BHATTACHARYA, ACTING CJ.] [J.B.PARDIWALA, J.] pirzada/-
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